ADVOCATES:Jeffrey L. Fisher - for the petitionerJoseph R. Palmore - Assistant to the Solicitor General , Department of Justice, for the United States as amicus curiae supporting the respondentLouis W. Karlin - for the respondent

Facts of the case

On October 12, 2009, Abel Lopez was attacked and robbed by a man he later identified as Walter Fernandez. Lopez managed to call 911, and a few minutes after the attack, police and paramedics arrived on the scene. Detectives investigated a nearby alley that was a known gang location where two witnesses told them that the suspect was in an apartment in a house just off the alley. The detectives knocked on the door of the indicated apartment, and Roxanne Rojas answered. The detectives requested to enter and conduct a search, at which point Walter Fernandez stepped forward and refused the detectives entry. They arrested Fernandez and took him into custody. Police officers secured the apartment, informed Rojas that Fernandez had been arrested in connection with a robbery, and requested to search the apartment. Rojas consented to the search verbally and in writing. During the search, officers found gang paraphernalia, a knife, and a gun.

At trial, the defendant moved to suppress the evidence seized in the warrantless search, and the trial court denied the motion. The jury found Fernandez guilty on the robbery charge, and he did not contest the charges for possession of firearms and ammunition. On appeal, the defendant argued that the trial court improperly denied his motion to suppress. The California Court of Appeal for the Second District affirmed and held that the warrantless search was lawful because a co-tenant consented.

Question

Does the Fourth Amendment prohibit warrantless searches when the defendant has previously objected but is no longer present and the co-tenant consents?

This case concerns the constitutionality of a search of an apartment that was conducted based on the consent of one but not both of the adult occupants of the premises.

When police offers in Los Angeles responded to a report of a robbery, they heard screams and sounds of fighting coming from a unit in an apartment building that they believe the suspect had entered.

They knock on the door and one of the occupants Roxanne Rojas opened the door.

She appeared to be crying, her face was red, she had a large bump on her nose and there was blood on her shirt and hand.

The officers ask Rojas to step out of the apartment so that they could conduct a protective sweep.

But at that point, Walter Fernandez, the other occupant appeared at the door and told the police that they could not enter.

Because the officer suspected that Fernandez had assaulted Rojas, they removed him from the apartment and placed him under arrest.

Approximately one hour later, the police returned to the apartment and received oral and written consent from Rojas to search the apartment and they found evidence incriminating Fernandez.

Fernandez's motion to suppress the evidence was denied.

He was convicted of robbery and other offenses and his conviction was affirmed on appeal.

California Court of Appeal affirmed and we now affirmed that decision.

It is well-established both that the owner were occupant of a residence can consent to a warrantless search of the premises and that were a residence is jointly occupied by more than one person consent by one of the occupants is generally sufficient to justify a search.

In Georgia versus Randolph however, we recognize an exception to that general rule.

We held that “a physically present inhabitants' express refusal of consent to a police search is dispositive as to him regardless of the consent of a fellow occupant.

The question before us in this case is whether Randolph applies if the objecting occupant is not in Randolph's terms physically present when another occupant consents.

We hold that Randolph does not apply in such a case but it's limited to situations and which the objecting occupant is physically present.

Both the language and the reasoning in the Court's opinion in Randolph's support this conclusion.

The opinion repeatedly emphasized that the objecting occupant in that case was present when the consent was provided and the search was conducted.

In addition, the opinion was based on the Court's assessment of “widely shared social expectations and customary social usage” in situations in which one occupant of the dwelling invites a visitor to enter but another physically present occupants stands at the door and objects to the visitor's entry.

The Randolph's Court recognized that it was adapting what it called a formalistic rule but it did so in the interest of simple clarity and administrability, we see no justification for extending that rule.

We therefore affirmed the judgment of the California Court of Appeals.

Justice Scalia has filed a concurring opinion.

Justice Thomas has filed a concurring opinion.

Justice Ginsberg has filed a dissenting opinion in which Justice Sotomayor and Justice Kagan have joined.